Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100401

Original file (ND1100401.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20101207

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19981121 - 19990125     Active:

Period of Service Under Review:
Date of Current Enlistment: 19990126     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20011220      Highest Rank/Rate: HN
Length of Service: Y ear( s ) M onth( s ) 25 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.67

Awards and Decorations ( per DD 214): None

Periods of UA /C ONF : None found in record

NJP :

- 20000526 :      Article NFIR [Extracted from NAVPERS 1070/604]
         Awarded: NFIR Suspended: NFIR

S CM :    SPCM:    C C :

Retention Warning Counseling : Not found in record

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT (MINOR INFRACTIONS) ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:
         Health/Medical Records:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the A rmed F orces and access to Department of Veterans Affairs (VA) educational benefits.

Decisional issues : The Applicant contends his misconduct of record w as an isolated incident in what was otherwise honorable service . Additionally, the Applicant contends that he did not receive any disciplinary action prior to being separat ed .

Decision

Date: 20 1 2 0112 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (MINOR INFRACTIONS) .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs, unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent stan dards of equity and propriety. The Applicant’s record of service reflects entry into military service with a waiver to enlistment standards due to not meeting basic minimum educational standards. He enlisted on a 4-year contract with a 12-month extension of service for guaranteed training as a Hospitalman . While in service, the Applicant was promoted to the rank of E-3/Hospitalman. T he Applicant’s record of service documents that he was subject to a nonjudicial punishment (NJP) on 26 May 2005; however, the specific charges are not documented in the service record. The Applicant was processed for administrative separation from the Navy pursuant to Article 1910-138 of the Naval Military Personnel Manual (MILPERSMAN) - Misconduct (Minor Disciplinary Infractions). He completed 2 years and 10 months of his five-year enlistment period. The NDRB applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.

Non-decisional Issue s : The Applicant seeks an upgrade to the characterization of his service at discharge in order to facilitate reenlistment in the A rmed F orces and access to VA educational benefits (Montgomery GI Bill). The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the A rmed F orces; furthermore, the NDRB is not authorized to change a reentry code. Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or access to Veterans Affairs benefits programs. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, th ese issue s do not serve to provide a foundation upon which the NDRB can grant relief.
(Decisional Issue) (P ropriety / ). . (1) The Applicant contends his characterization of service at discharge was inequitable; his misconduct of record was an isolated incident in what was otherwise honorable s ervice. (2) T he Applicant contends that he did not receive any disciplinary action prior to being processed for separation.

Propriety : In accordance with Article 1910-138 of the MILPERSMAN, a service member may be discharged administratively from the service based upon a series of at least three, but not more than eight, minor violations (i.e. , specifications) of the U niform Code of Military Justice (U CMJ ) . Furthermore, these v iolations could not have resulted in a punitive discharge and must have occurred during the current enlistment . The Applicant’s service record documents an NJP dated 26 May 2000; b ased on the Applicant’s statement, th is NJP was for violation o f the UCMJ for dereliction in the performance of duties and misuse of government property. Moreover, the Applicant further stated that he was determined by the command to have violated Article 86 of the UCMJ ( U nauthorized A bsence) and was then discharged. Based on the documentation in the service record, coupled with the Applicant ’ s statements, the NDRB determined that the discharge action met the minimum requirements for processing for Misconduct - M inor D isciplinary I nfractions. As such, no change based on the propriety of the discharge action is warranted.

Equity Issue 1 : The Applicant contends his characterization of service at discharge was inequitable; his misconduct of record was an isolated incident in what was otherwise honorable s ervice. C haracterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. However, a General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record. The Applicant’s record of service is marred by at least three violations of the UCMJ, a retention counseling warning, and a Physical Fitness Assessment failure. In accordance with Article 1910-138 of the MILPERSMAN, the least favorable and the accepted characterization of service for discharge due to Misconduct (Minor Infractions) is a General (Under Honorable Conditions) characterization of service. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful , but that negative aspects of his conduct or performance of duty did outweigh the positive aspects of his service record . As such, the NDRB determined that the discharge and the awarded characterization of service was warranted , was proper , and was equitable. Relief not warranted .

Equity Issue 2 : The Applicant contends his discharge was unjust since he did not receive a Captain’s Mast for unauthorized absence prior to being processed for separation. The decision to administratively separate a service member is made independently of the imposition of NJP per regulation s . Additionally, separation for minor misconduct does not require a second nonjudicial punishment; it requires only that , by a preponderance of the evidence, the command determined that continued misconduct (a chargeable violation of the UCMJ ) had occur red . Given the statements of the Applicant and the evidence of record, the NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain (MINOR INFRACTIONS) . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 26, effective 4 June 2000 until 24 February 2002, Article 1910-138, Separation b y Reason o f Misconduct - Minor Disciplinary Infractions.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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NAVY | DRB | 2011_Navy | ND1100401

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